ICC extends War

Crimes of Rape and

Sexual Slavery to
Victims from Same
Armed Forces
as Perpetrator
JANUARY 5, 2017 / YVONNE MCDERMOTT
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Readers of this blog will be interested in an important
decision issued by Trial Chamber VI of the ICC in the
case of Ntaganda yesterday. At issue was the
Defences argument that the Court could not have
jurisdiction over the crimes of rape and sexual slavery
allegedly committed against UPC/FPLC child soldiers,
because war crimes cannot be committed against
combatants from the same armed forces as the
perpetrator. Such crimes, the Defence argued, would
come within the ambit of domestic law and human
rights, and were not covered by the war crimes
prohibition.
 Bosco Ntaganda. Picture credit.
The argument, on its face, is rather convincing the
Geneva Conventions and their Additional Protocols
explicitly protect certain categories of persons,
principally sick, wounded and shipwrecked persons
not taking part in hostilities, prisoners of war and other
detainees, civilians and civilian objects. Ntaganda is
charged with these crimes under Article 8(2)(e)(vi) of
the ICC Statute, which defines the war crime as:
Committing rape, sexual slavery, enforced
prostitution, forced pregnancy, as defined in article 7,
paragraph 2 (f), enforced sterilization, and any other
form of sexual violence also constituting a serious
violation of article 3 common to the four Geneva
Conventions;
The chapeau of Article 8(2)(e) enumerates the crimes
therein as being other serious violations of the laws
and customs applicable in armed conflicts not of an
international character, within the established
framework of international law. It stands to reason,
then, that we would examine that established
international law framework in seeking to determine
whether fellow combatants from the same armed
forces as the perpetrator are protected by that
framework.
Common Article 3 refers explicitly to persons taking
no active part in hostilities, while Article 4 of
Additional Protocol II (which contains the prohibition
on outrages upon personal dignity, rape, enforced
prostitution and any form of indecent assault) applies
only to those persons who do not take a direct part or
who have ceased to take part in hostilities, whether or
not their liberty has been restricted.

The most obvious way to resolve this issue would

seem to be to acknowledge that Article 8(2)(c) and (e)
crimes cannot be committed against those actively
taking part in hostilities, but to argue that those
victims identified in paragraphs 66-72 of
the Confirmation Decision as having been abducted
to act as domestic servants and, in the words of one
witness, provide combined cooking and love services
were obviously not actively taking part in hostilities.

Yet, other victims mentioned in the Confirmation

Decision acted as bodyguards, while other young girls
abducted by the UPC/FPLC and later raped by
soldiers in camps underwent military training, from
which we can assume that they probably carried out
some military functions. The issue here is that
the Trial Chamber in Lubanga embraced a much
broader definition of active participation in hostilities,
in order to include a wide range of children who were
forcibly recruited as victims under Article 8(2)(e)(vii). It
determined, in paragraph 628, that:
Those who participate actively in hostilities include a
wide range of individuals, from those on the front line
(who participate directly) through to the boys or girls
who are involved in a myriad of roles that support the
combatants.
At the time of the Lubanga judgment, several authors
noted that this expansive definition may have
unintended negative consequences for the protection
of children in armed conflict. For example, Nicole
Urban argued that, Should the sexual exploitation of
and violence against child soldiers render them
active participants in hostilities under one Article,
there is a real risk that they will also be considered as
active participants in hostilities under the others. In a
sense, the chickens have now come home to roost,
as the Court in Ntaganda has to marry that
interpretation, which seeks to protect child soldiers as
victims of forcible recruitment, with an interpretation
that includes them within the ambit of Article 8(2)(e)
when they become victims of other war crimes.

The Pre-Trial Chamber took the position that

individuals only lose their protection for such time as
they are actively participating in hostilities, and that
those who were raped and subjected to sexual
violence were clearly not participating in hostilities at
that time. This interpretation is somewhat problematic,
as it sidesteps the situation of those members of the
armed groups who bear a continuous combat
function.
Trial Chamber VI in yesterdays decision took a rather
different approach, by determining that:
While most of the express prohibitions of rape and
sexual slavery under international humanitarian law
appear in contexts protecting civilians and
persons hors de combat in the power of a party to the
conflict, the Chamber does not consider those explicit
protections to exhaustively define, or indeed limit, the
scope of the protection against such conduct. (para.
47)
It went on to conclude that, because the prohibition of
rape had attained jus cogens status under
international law (para. 51), such conduct is
prohibited at all times, both in times of peace and
during armed conflicts, and against all persons,
irrespective of any legal status, and that it did not,
therefore, need to determine whether the victims were
members of the armed forces at the relevant time
(paras. 52-53).

Judge Kuniko Ozaki, one of the three Trial Chamber

judges. Picture credit.
This decision neatly sidesteps the issues surrounding
the notion of active participation in hostilities raised by
the Lubanga judgment. Yet, the conclusion that
members of the same armed force are not per
se excluded as potential victims of war crimes is a
very expansive interpretation of Article 8, and one that
is not fully reasoned in the judgment. The decision
appears to be founded on two separate aspects.

The first is that not all war crimes need to be

committed against protected persons (para. 37). The
Chamber referenced a number of sub-paragraphs of
Article 8(2)(e) in this regard, namely Articles
8(2)(e)(ix) and (x) on perfidy and denying that no
quarter will be given, in support of this argument. This
is not entirely convincing, as Article 8(2)(e)(ix)
explicitly refers to killing or wounding a combatant
adversary treacherously. Article 8(2)(e)(x), prohibiting
a declaration that no quarter will be given, is explicitly
prohibited because it would result in the killing of
persons hors de combat.

The second justification for the decision appears to be

the widespread prohibition of rape and sexual
violence under international humanitarian law. The
Chamber considered that to limit the protection
against rape to exclude members of the same armed
group would be contrary to the rationale of
international humanitarian law, which aims to mitigate
the suffering resulting from armed conflict, without
banning belligerents from using armed force against
each other or undermining their ability to carry out
effective military operations. Given that there could
be no military objective or justification to engage in
sexual violence against any person, regardless of
whether or not that person was a legitimate target
under the law of armed conflict, the Chamber
considered that the prohibition of sexual violence
under International Humanitarian Law was not limited
to certain categories of persons, and that anyone
could be a victim of this war crime. This justification is
more convincing, but leaves many questions
unanswered, as it seems to be limited to the
prohibition of rape (which the Chamber considered to
be a jus cogens norm of international law). We might
ask, for example, whether armed forces who commit
acts of humiliating or degrading treatment against
their own members, or who deny those members a
fair trial, may now find that they are committing war
crimes under Article 8 of the ICC Statute.

This decision is clearly founded in a desire to offer the

greatest level of protection to victims of sexual
violence in armed conflict, regardless of their status. A
similar argument was made in the ICRCs
updated commentary to Common Article 3 of the
Geneva Conventions, which stated that all Parties to
the conflict should, as a minimum, grant humane
treatment to their own armed forces based on
Common Article 3.
It will certainly be interesting to see what states
reactions to this expansive interpretation, and what
the broader consequences of this decision, will be.